Transcription
This is Democracy Watch. Mark, there is going to be a major Supreme Court ruling dropping. And I want to make sure here that everybody understands what the implications of this Supreme Court decision are going to be, and this is the Cala case. Uh, otherwise known as section two of the Voting Rights Act. It hasn't yet dropped, but I want to make sure that in anticipation of some decision on this case, that everybody knows what the stakes are. So, first and foremost, can you explain what the implications of Cala are?
Yeah. So, this is a case out of Louisiana. And the backdrop here is that Louisiana, like Alabama, uh, drew maps after the 2020 census that created one rather than two black opportunity districts in both states. They were sued by my law firm, as well as by others, uh, to say that the Voting Rights Act, which requires equal opportunity for minority voters, um, required uh, a second uh, uh, black opportunity district. We won that case in Alabama. It went to the US Supreme Court and, to many people's surprise, uh, it was affirmed. That was uh, the the the Milligan case. So, as a result, there are two um, uh, black uh, uh, opportunity districts in uh, in Alabama.
In Louisiana, we also filed a lawsuit and won. And there, the state of Louisiana uh, decided to comply with the court's order and draw a new map with two rather than one black opportunity districts. Well, what happened next is a group of white voters came along uh, and they challenged that new legislative map, saying that it was a racial gerrymander that discriminated against white voters. As offensive as that is, like, this is where we are. They actually describe themselves as non-black voters, but for simplicity's sake, let's just call them white voters. But in any event, those, that case then goes up to the US Supreme Court. And that is the the the Klay case that we are now waiting on a decision.
And the problem is that the Supreme Court, in when it first heard this case, which was last spring, um, you know, in the course of the argument, seemed to indicate that, uh, it might not just rule in against the the map that Louisiana drew, but might do so in a way that would either undermine completely or overturn the Voting Rights Act. We grew more concerned because they didn't decide that case and instead set it for reargument this term. And when they set it for reargument, they asked explicitly the two parties to to brief the question about whether section two is still uh, uh, still still in force and whether it's constitutional. So, that has been argued.
And what is at stake is the continued viability and effectiveness of the last main major provision of the Voting Rights Act, section two. If this gets struck down or if it gets, you know, just sidelined, um, you will see more than a dozen, depending on the estimate. The New York Times said it was uh, it was 12. There are estimates to say it's 19. I've Fair Fight has said it could be closer to 30 seats held by black um, uh, uh, members of Congress, all of whom are Democrats, that could then be subject to redraw by Republican legislatures. And that would be a calamity for voting rights. It would be terrible for democracy. And it would also allow those Republicans to fulfill Donald Trump's wishes of of gerrymandering uh, uh, seats at such a level that it would be very difficult for Democrats to win.
>> Now, in terms of timing, uh, when is basically the break glass moment? When is the latest that Republicans would be able to see Cala handed down where they would still be able to redraw their map so that it could have an impact on the 2026 election? None of which is to say, by the way, that this happening wouldn't still have massive impact because we've got every subsequent election beyond 2026. So, so at some point, it's going to have a huge impact, but at least just thinking in a short, you know, in in a short-term fashion, what's the latest that that we could see this ruling where it could still impact 2026?
>> Yeah. So, um, the answer is, it depends. So, you know, it depends on two things. The first is that different states have different deadlines, right? So, if you remember back when we were talking about Texas, they have a very early filing deadline for candidacy for candidates. It's like November and the cut off is December. So, in Texas, it functionally would be too late. They have already chosen candidates or candidates have already filed and it's a relatively early primary election. There are other states, however, though, that have relatively late filing deadlines and don't have their primary elections until the summer. So, they have a much further deadline, a much longer runway for changes. Plus, legislators can change deadlines. So, like, one of the points that I always make whenever you and I talk about Democratic states and people are like, "Oh, it's too late." I'm like, "No, the legislature can change the law." Right? Like, it's not too late for Democratic states. They control the law. They can change the filing deadlines. They can change the primary date right within certain limits. They they control the calendar.
So, the short answer is, it will depend on the state and how far along they are in their process and whether or not they're willing to change it. The conventional wisdom is that, you know, if we get into the late spring, it is probably too late for 2026. Certainly by June or early July, when you get the most important case of the Supreme Court typically, it would be too late because the because there are backend deadlines for the general election that don't allow the primaries to move uh, too much later. That said, Brian, you know, there is a world in which you start to see this spring some Republican controlled states in the South just anticipate a favorable ruling in Klay and they will start to redraw their maps assuming that Klay is overturned and then just basically say, "Look, Mark Elias, if you want to sue us, sue us, but we're going to act as if the Voting Rights Act has already been overturned."
>> Okay. So, I I guess the answer the question I should be asking here, do you feel like, given the information that we can read from the tea leaves, that the fact that they wanted to hear this case that wasn't even supposed to be about section two of the Voting Rights Act. It was just supposed to be narrowly about the map in Louisiana, and they asked unto themselves uh, if they can hear a broader case challenging the legitimacy of section two of the Voting Rights Act. Does that suggest that we are going to see section two of the Voting Rights Act overturned when the Supreme Court returns its ruling?
>> Yeah, look, this is the right question. And you just summarized in your question uh, the part of the very long answer I gave at the beginning. So, this is among the reasons why everyone needs to subscribe to you and your channel because you have a way of cutting through all of the complexity of what's going on in politics and politics and law. And so, I encourage everybody to subscribe to this channel. Um, yes. The answer is yes. That that the Supreme Court was asked a question about whether or not the white voters who who challenged this map could bring a racial gerrymandering claim, and they converted it at their initiative. As you say, they requested the case be briefed and argued about section two of the Voting Rights Act, which is not the same thing as racial gerrymandering. It's actually quite separate from racial gerrymandering. Saw this case about one doctrine as an opportunity to simply force the parties into briefing this other question. So, you know, obviously, that is a sign that that things are heading in the wrong direction, right? Because it's not the liberals on the Supreme Court who are doing that, and there isn't a reason why, if you simply want to affirm the Voting Rights Act, you need to go through all of this, right? So, so it is certainly a bad sign.
Now, I won't say that, you know, it's a foregone conclusion, but it is certainly a bad sign. And when you add that to the questions asked at oral argument, and you add that to just the voting patterns of the of the nine justices, you know, it's hard to see how this ruling turns out favorably. Again, I never give up. We fight until the end. But I think we all need to anticipate that there is a very strong likelihood that the result here will be very, very bad for democracy, catastrophic for voting rights, and bad for Democrats. But, you know, Brian, at that point, we need to dust ourselves off and we need to pick ourselves up and we need to fight with the tools that we have. And so that is my other message to everybody. Don't become naysayers. Don't become cynics. Don't become people who lose hope. What we need to do is we need to figure out new tools and new legal theories uh, to move forward with.
>> And and you are going to be at the forefront of that fight. You've already got litigation in more than 80 cases across the country, largely centered around voting rights. So, this is your forte more than anybody else in the United States. So, highly recommend for anybody who is interested in this topic, uh, and this topic is foundational. Anybody who's interested in this topic, please subscribe to Democracy Docket. I'm going to put the link to Democracy Docket right here on the screen and also in the post description of this video. That is Mark's news outlet that focuses on everything voting in elections. You will be the first to find out if and when something happens at the Supreme Court if you're subscribed. So, again, please make sure to subscribe if you've not yet signed up. Mark, on that point of figuring out what tools we have at our disposal, the way that I'm thinking about this is, okay, is there a world in which, let's say, Democrats can retake the House, ultimately the Senate and the White House? Do you pass some other legislation, for example, that can codify what had previously been uh, that had what had previously been settled law in the Voting Rights Act? Can you codify that moving forward in such a way that it's kind of immune from pressure at the Supreme Court?
>> Yeah, you can. I mean, there are lots of things Congress can do. And the reason for that is because the Constitution grants the states the authority, but actually gives Congress expressly the ability to alter what the states do by federal legislation. So, Congress has a lot of options. And I want to I want to sort of um, I don't want to say correct you, but I want to I want to sort of divert this in a slightly different direction, Brian, which is that I think we are beyond the era of codifying what was.
>> Yeah.
>> Like the John Arlo Voting Rights Advancement Act was a codification of what was. It was it was essentially an effort to recapture what the Voting Rights Act was before um, the Shelby County decision, which overturned section five of the Voting Rights Act. Um, it updated it, but it largely was modeled after that. And I think I think the thing that I challenge everyone watching this video to do, and for all Democrats and progressives to do, is rather than trying to simply restore things back to the pre-Trump era, we need to learn from what Donald Trump did. We don't want to replicate him. We don't we're not looking to create a a left-center authoritarian, but we need to be willing to use all of the tools that he was willing to use. And so, you know, the Constitution gives Congress a lot of authority when it comes to uh, redistricting. I mean, Congress itself could enact a map nationwide. Congress could enact proportional representation. Congress could ban partisan gerrymandering. Congress could put in place a nationwide pre-clearance requirement, which section five only applied to certain jurisdictions. They could put in place a nationwide uh, redistricting uh, uh, provision. You and I have talked in in earlier videos about, you know, a case we won in New York under the New York State Voting Rights Act, which is quite a bit broader than the Federal Voting Rights Act. Like, we need to be open to moving forward with a positive vision of what we want things to be rather than a nostalgic view of recapturing old. Going back to where we were in the Biden, Merrick Garland era is not what I aspire to. Frankly, going back to where we were in the Barack Obama era is not where I aspire to. Donald Trump has destroyed that world. Like, we that that isn't going to be a thing. If Donald Trump stands for the proposition that there is strong executive power, and that you know that then we ought to be in a position to use strong executive power. If he stands for the proposition that the Department of Justice is under the control of the White House to do bad things, we ought to go in with an affirmative position with a new Democratic president with using the Department of Justice proactively. I mean, you know, you mentioned that my law firm is involved in 80 cases. Um, 25 of them involve cases that the Department of Justice under Donald Trump has brought, and we're fighting defense in all of those cases. By the way, not with the help of any of the large law firms, I might add, but but my small law firm, we're fighting all those cases. But Brian, Merrick Garland, and I don't mean to just bash Merrick Garland, but Merrick Garland's Department of Justice under the last two years in the Biden administration brought a total of five voting cases. Five. I mean, like, so I don't want to go back to that, right? You know, and so I really want everyone watching this to subscribe to this channel and watch this series. And by the way, also watch the series that that Brian does with Glenn Kersner, which I learn a lot from uh, and his and his other interviews because a lot of what Brian is doing is helping us think through not what was, but what can be. And so much Brian of what you did um, uh, which I've given you credit for before and which I will again, around the California redistricting uh, process was an example of that. Like, it was innovative. It was different. It was not something that we had done before, and it was not something that frankly Texas did. Like, it was a new model. And so we just need to be thinking proactively about what tools are available to us and how we do that. And I think that that will lead to stronger voting rights protections than what we had before.
>> Well, look, I think you've just proved that there's no better champion for exactly that uh, than what you do. So, again, for folks who are looking to elevate Mark's voice, which clearly is very important to do, the best way to do that is to subscribe to Democracy Docket. I'm going to put that link right here on the screen and also in the post description of this video. And of course, if you want to subscribe to this channel and watch more of this series, that subscribe button's on the screen as well. I'm Brian Teller Cohen.
>> I'm Mark Elias.
>> This is Democracy Watch.
[music]